SZBAL v Minister for Immigration - [2004] FMCA 837

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAL v MINISTER FOR IMMIGRATION

[2004] FMCA 837

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal credibility finding based on misunderstanding, failure to take into account relevant considerations or was unreasonable – whether Tribunal erred in law in finding Convention reason not established – whether Tribunal incorrectly categorized claim.

Udeni Welivita v Minister for Immigration & Ethnic Affairs [1996] 989 FCA 1
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Mashawekhi v Minister for Immigration & Multicultural Affairs [2000] FCA 321
W168/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 538
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407
Applicant A and Anor v Minister for Immigration & Ethnic Affairs and Anor(1997) 190 CLR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZBAL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1446 of 2003

Delivered on:

16 December 2004

Delivered at:

Sydney

Hearing date:

19 August 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr I. Archibald

Solicitors for the Applicant:

Michaela Byers, Solicitor

Counsel for the Respondent:

Mr R. Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1446 of 2003

SZBAL (1) & SZBAL (2)

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 November 2002 affirming a decision of a delegate of the respondent not to grant protection visas to an Indonesian couple and their three young children. The proceedings for review of that decision were commenced in this court by application filed on 28 July 2003 in the name of the applicant wife only. This was despite the fact that the principal applicant in the proceedings before the Tribunal was the husband. The applicant husband applied to be included as a party to the proceedings in an application filed on 19 August 2004. The respondent withdrew an initial objection and the court ordered that the husband be included as a party to the proceedings as an applicant. In order to identify the applicants within the constraints of s.91X of the Migration Act 1958, the applicant wife is described as SZBAL(1) and the husband as SZBAL(2). Despite withdrawing any objection to the husband being joined as a party, the respondent’s counsel confirmed that the respondent’s position was that neither application for review was in time.
The background to these proceedings is that the applicant husband, who is an Indonesian citizen, claimed to fear persecution on return to Indonesia because he had given financial assistance to the Acehnese Freedom Movement (GAM) starting in January 2001 until his house was raided by the Indonesian military in June 2001. He claimed that the military had interrogated him and some of his Acehnese friends, that he was taken to the local police station, detained for three days and then released and that during the detention he was tortured and forced to sign a statement that he would not give any further money to GAM. He was also required to report to the police three times a week for a year. The applicant claimed that many friends were detained again, that he was afraid and that he decided to leave the country, leaving his family in Indonesia. He left Indonesia on 22 September 2001. He believed that he would be arrested if he returned to Indonesia. He applied for a protection visa on 22 October 2001. The Department invited him to an interview to discuss his claims and certain specified information. Neither he nor his adviser responded to this letter and the applicant did not attend the interview. The husband’s application for a protection visa was rejected by a delegate of the respondent on

31 December 2001. He sought review by the Tribunal on 30 January 2002.
Subsequently the applicant wife and the three children of the couple arrived in Australia from Indonesia on 9 March 2002. They applied for protection visas on 6 June 2002. In a statement lodged in support of her application the applicant wife stated that after her husband left the country she was visited by the Indonesian military twice. They had asked her why her husband did not come to report. She claimed that the military were very rough to her and to her children, that on their first visit they hit her and shouted at the children and that they were all crying. The applicant said she had reported that there had been a family problem and her husband had left the house and not returned but the military somehow knew that she was lying to them. One of them pulled her hair and said that her husband must come to the station in a week or else. The applicant claimed that the second visit from the military took place at night and that they threatened her that they would take her if her husband did not turn up. She then made the decision to leave the country. Her application was rejected by a delegate on

18 June 2002 and she (and the children) applied for review by the Tribunal on 17 July 2002. The circumstances and claims of the husband and wife were discussed with them at a Tribunal hearing on

1 November 2002. The transcript of the Tribunal hearing is before the Court. The applicant told the Tribunal that over a period of several months in the first half of 2001 he regularly gave money to help GAM to some people he had met through business; he would see these people regularly on Saturdays and they would ask for donations. He described his subsequent detention and was asked about what occurred thereafter as discussed below.
The two decisions of the delegate were affirmed by the Tribunal in the one decision handed down on 27 November 2002. In its reasons for decision the Tribunal referred to the husband as ‘the applicant’ for convenience, noting that the applicant wife and children relied upon essentially the same grounds as the applicant husband and that it was convenient and appropriate for the Tribunal to consider both review applications together in the one decision.
The Tribunal described difficulties it had with aspects of the evidence before it and the differing accounts of the applicant and his wife about his circumstances between the end of June 2001 and September 2001. In particular the Tribunal noted that the applicant’s testimony had changed in the course of the hearing. The applicant had told the Tribunal that he had been detained by the military police on 30 June 2001 and released at the beginning of July and that thereafter he had quickly applied for and almost straight away obtained his Australian visa and left the country, but when pressed he had acknowledged that he had not in fact applied for an Australian visa until late August 2001 and had left Indonesia in September 2001. The Tribunal had put to him that he had been questioned and then released, had been reporting to the police regularly and had not been re-arrested and that he had been able to obtain his Indonesian passport in his own name in August 2001 and to depart openly using that passport in September 2001 so that it seemed unlikely that the authorities had still been interested in him.
The Tribunal reasons for decision record that the applicant then ‘made the new claim’ that he had only reported to the police three times in the first week after his release and not thereafter, that he had fled from his home and had been living in the house of a relative because people were phoning and looking for him at home. The Tribunal put the inconsistencies between these claims to the applicant. He blamed memory loss for the difference. The Tribunal did not accept the applicant’s claim that after a year he would have forgotten or been unclear as to whether he had been attending the police station for a week or for three months or whether he had been living at home or in hiding. The Tribunal noted that it was only after September 2001 that the authorities were said to have come and asked about the applicant’s whereabouts and told his wife that he had stopped attending the police station. On the basis of this evidence the Tribunal was satisfied that the applicant continued to live at home and regularly attended the police station up to his departure from Indonesia in September 2001. It was satisfied that the applicant deliberately fabricated his testimony on this point in an attempt to counter the Tribunal’s observation that he had not been re-arrested during the period from July to September 2001 and had been able to obtain his passport and leave Indonesia. This conclusion led the Tribunal to view the applicant’s testimony more generally with some scepticism. The Tribunal also noted that while the applicant and his wife agreed precisely on the date and time of day the applicant was taken to the police station they otherwise provided very definite and specific but differing, details. In particular the applicant had stated that he was picked up by six plain clothes military officers. His wife had stated that he was taken by two officers in military uniforms. The Tribunal found it hard to reconcile these accounts as both being genuine recollections.
The Tribunal accepted that the applicant had some social or business contact with, and may have made some modest donations to, persons who were involved with the Acehnese insurgent movement (GAM) and that in consequence of this he was picked up, questioned and warned against continuing such contacts. It also accepted that the applicant was released after three days and (whatever may have happened to friends directly involved with GAM) that he himself was not re-arrested, notwithstanding that the Tribunal was satisfied that throughout this period the applicant was in regular contact with the local police station, was living at home and for most of the period conducting his normal business so that he could have been re-arrested or questioned again had the police wished to do so. The Tribunal also had regard to the fact that the applicant had obtained his passport without difficulty and departed openly and legally and that he did not claim to have had to recourse to a large bribe to enable him to do so, despite country information about difficulties for persons leaving Indonesia if sought for involvement with GAM or the Aceh Merdeka movement.
The Tribunal was not satisfied that the authorities were seeking to re-arrest the applicant or that they had anything more than a ‘watching brief’ on him at the time he left Indonesia. Nor was it satisfied that the authorities’ interest in the applicant in June or September 2001 was for any reason other than his suspected involvement with an organisation engaged in illegal and violent activities and/or the belief that he could provide information about others more directly involved in that organisation. The Tribunal was satisfied that it was not necessarily unreasonable or persecutory for the authorities to wish to question or arrest persons in such circumstances. It found that their interest in the applicant (who was not even Acehnese) was not in relation to his political opinion or ethnicity but rather in relation to his material support for GAM and the information he might provide about GAM members. The Tribunal found that to the extent a person may face investigation, questioning or arrest on suspicion of such involvement in the armed Acehnese insurrection this did not of itself necessarily amount to persecution for a Convention reason (see Welivita v MIEA Lindgren J NG958 of 1995, 18 November 1996 (unreported)), as prosecution and penalisation for a criminal offence does not establish the existence of a well-founded fear of being persecuted for reasons of political opinion. The Tribunal was not satisfied that arrest or possible mistreatment by the authorities in these circumstances would be significantly or essentially for a Convention reason. Similarly, although the Tribunal accepted that the authorities’ interest in the applicant may have been heightened subsequently by his departure overseas and his family’s attempt to cover that up and by his abandonment of reporting to the police station and that the authorities may have conducted enquiries with his family, it found that while his violation of agreed reporting conditions may have adverse consequences for him, it was satisfied that any further detention or questioning or arrest of the applicant (or of his wife) would not arise for a Convention reason.
The Tribunal also had regard to the degree of force said to have been employed by the authorities against the applicant in custody and when questioning the applicant’s wife. It found that although mistreatment encountered after having been detained for a non-Convention reason may nonetheless then arise for a Convention reason (for example, because of a person’s ethnicity) and therefore constitute Convention persecution, it was not satisfied that this was the case. It referred to independent evidence that mistreatment was frequently encountered in dealing with the Indonesian security authorities, including in normal criminal enquiries and found that it was not necessarily indicative of persecution for a Convention reason. It was not satisfied that any mistreatment of the applicant or his wife had arisen or would arise for any Convention reason.
In conclusion the Tribunal was not satisfied that the applicant or his wife faced a real chance of persecution for a Convention reason on return to Indonesia.
In an amended application the applicants relied on seven grounds for review. One (Ground 6) was not pursued.
The first ground was that:
“The Tribunal based its adverse credibility finding on a perceived “change in testimony” by the applicant during the Tribunal hearing. The adverse credibility finding:
(a) was based on a misunderstanding of the applicant’s evidence,
(b) failed to take into account a relevant consideration which the Tribunal was bound to take into account if it had acted reasonably, that being the true meaning of the applicant’s answers to the questions of the Tribunal,
(c) was unreasonable.”
It was contended that the Tribunal misunderstood the applicant husband’s answer to questions put to him in the course of the Tribunal hearing in the following exchange:
Q: Yes, but that was in September. We are talking about June when you were released. What about between June and September when the visa was issued?
A: I’m sorry, could you repeat the question?
Q: I was asking you whether you in fact reported to the Pukasi Police Station three times a week between June and when you left in September? That was a question which you haven’t answered.
A: Yes, I did.
The applicant submitted that the Tribunal took this last answer as meaning that the applicant was saying that he did report three times a week between June and September rather than that he was asserting by the words ‘yes, I did’ that he had answered the question. It was contended that the finding that he claimed he did report three times a week between June and September was not reasonably open to the Tribunal and that the Tribunal had erred in relying on the applicant’s answer ‘yes, I did’ to make a finding that there was a change in testimony when a few questions later the applicant stated that he had only reported to the police three times, and then left home his home and disappeared. It was contended that by basing an adverse credibility finding on this single answer, the Tribunal had constructively failed to exercise its jurisdiction, made an unreasonable finding and failed to accord the applicant appropriate procedural fairness such that the decision should be set aside.
It was contended that the applicant’s answer ‘yes, I did’ was ambiguous, that the finding that the Tribunal was satisfied that the applicant deliberately fabricated his testimony concerning his circumstances between the end of June 2001 and September 2001 was ultimately based on the ambiguous meaning of the response, that such credibility findings were not open to the Tribunal on the material before it and moreover that it was not logically probative to base a credibility finding on the ambiguous response (cf Kopalapillai v MIMA (1998) 86 FCR 547 at 552 and 559, also see Mashawekhi v MIMA [2000] FCA 321 at 383). Counsel for the applicant referred to the nature of Tribunal procedures and the principle referred to by Lee J in W168/00A v MIMA [2001] FCA 538 at [12] that “Adverse decisions on credibility by the Tribunal should be restricted to the ‘most obvious’ cases if the risk of injustice to applicants is to be avoided”. It was submitted that this was not a ‘most obvious’ case as the credibility finding was based on an ambiguity.
Credibility findings are a function of the decision-maker par excellence (Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). In this instance the Tribunal credibility findings were open to it for the reasons it gave on the material before it. First, the claim that the answer

‘yes, I did’ was ambiguous is not supported by the evidence before the Court of what occurred in the hearing. It is apparent from the transcript that the applicant had not in fact previously answered a question about whether he had reported to the police station three times a week between June and when he left in September 2001. The passage in the transcript of the Tribunal hearing immediately prior to the part referred to in the applicant’s submissions is as follows:
“Q. You had to report back to the police station, is that right or not?
A.     Yes, after I signed the agreement to say that I would no longer contribute aid to the Free Aceh Movement I had to sign also, I had to say that I would also, was prepared to report three times a week for a period of one year.
Q.     That was to the Pukasi Police Station?
A.     That’s correct
Q.    And that was from June 2001 when you were released?
A.     That’s correct.
Q.     So you did that until you left Indonesia?
A. Well, after I was released after my three day arrest, I had that statement, that agreement to sign that I would not contribute any aid to the Free Aceh Movement, and after this I used the opportunity to escape. I applied for a visa. I went to the Australian Embassy in Jakarta, and I was very fortunate. I applied for a visa on the Monday and on the Thursday I already obtained the visa and I left immediately.
This passage, which contains the only prior reference to reporting to the police, leaves unanswered whether the applicant reported until September.
Further, it is for the Tribunal to determine the meaning to be given to the applicant’s answer. Even if the answer ‘Yes I did’ was ambiguous, it is clear that the Tribunal subsequently raised with the applicant its understanding of what he had said (that is, that he had been reporting throughout the period between June and September). The later exchange between the Tribunal and the applicant is instructive in this regard:-
Q.     The fact that you were staying away from home is not relevant to the proposition that the authorities weren’t sufficiently interested in you to re-arrest you, because after all you were going to the police station three times a week. Whether or not you were staying away from home, you were in close touch with the authorities and they could have taken further action against you if they wished to.
A.     Yes, indeed it was easier to arrest me because I was regularly reporting to the police, but I only reported to them three times then we disappeared.
Q.    That’s not what you told me twenty minutes ago when you said that you were doing that right up until you left Indonesia, you were doing it throughout the period between June and September, we discussed that earlier.
INTERPRETER: Excuse me, the interpreter is getting a little bit confused here.
MEMBER: Well, ask him to rephrase that.
APPLICANT HUSBAND: Well indeed I had the obligation to report to the police three times a week and that was an obligation that had been written down with the intention that I remain in the same place, but I only did that three times and then after that I went away, I disappeared.
Q.    And you stopped reporting after three times, after three times, after the first week?
A.   Yes, well I stopped going there, and then I heard the information that they’d come looking for me, I don’t know whether it was the police or the military, they came looking for me at home. My wife would know which it was. I disappeared and I stayed at the house of my younger sibling.
Q.    But you told me earlier that you, when I asked you whether you were attending three times a week between June and when you left in September, you said that yes you were. Now you are telling me something different.
A.   Yes, I was. Indeed that’s correct from June to September I was under the obligation to report, but because I was scared I only did it that one week three times. You know, maybe I was a bit sort of neglectful and didn’t explain this but these events happened a year ago and I am just relating what I can recall.
Q.Surely you would recall if you were attending the three months or just attending for one week, and I will be checking the tape to check exactly what you said previously. But my recollection is that you’ve now told me two different things.
A.   Well, yeah, I mean concerning that period September 2001 and going back to June 2001, and now I’ve been here for a year in Australia, and maybe there are some sort of odd bits of my story, bits that I can’t remember very well, because you know since I arrived in Australia I have been focusing on trying to live here and support my family, then I got the letter from Immigration telling me to report and explained what happened you know one year ago.

Importantly the applicant did not deny that he had made the earlier claim that he had been reporting three times a week between June and September 2001. Instead he acknowledged the difference in his accounts and provided an explanation based on the time that had passed and his poor memory. He suggested that he was perhaps a bit neglectful and didn’t explain the events. It cannot be said that the Tribunal left an unexplained ambiguity unclarified and then relied on that to base a credibility finding. Moreover, it put its concern about its understanding of what he had said to the applicant and gave him an opportunity to comment.
The Tribunal also raised the issue of the husband reporting to the police and the events between June and September 2001 with his wife. In response to a question as to whether he kept attending right until the week he left or a little before that, she agreed that he kept reporting. It is also relevant that the Tribunal put to the applicant at the end of the hearing that his wife had said that he did attend the police station regularly up until he left and that he had been living at home in that time. While the transcript tendered shows that the hearing tape ended at that point, the Tribunal reasons for decision record that the applicant stated that he had not told his wife that he had stopped attending the police station as he did not want to worry her and that he had been spending nights at the house of a sibling. It was however open to the Tribunal to prefer the evidence of the wife in this regard particularly as in giving this explanation the applicant had again acknowledged the inconsistency in his evidence on the basis that it was the truth but ‘It was just that I hadn’t actually got around to telling that part in the beginning.’
In these circumstances the Tribunal finding about the credibility of the applicant was open to it on the material before it (Kopalapillai v MIMA (1998) 86 FCR 547 at 559). It was not based simply on the ‘Yes I did’ answer. The Tribunal had regard to the different evidence of the applicant and his wife, the perceived change in his testimony and the unsatisfactory nature of his explanation for this (and it is relevant that in that explanation the applicant agreed that he may have said two different things and acknowledged that there were bits of his story he could not remember very well). The Tribunal also had regard to the undisputed evidence that it was only in early October 2001 that the authorities were said to have come to the home, asked about the applicant’s whereabouts and told his wife that he had stopped attending the police station. It was in light of all of this evidence that the Tribunal was satisfied the applicant continued living at home and regularly attending the police station until his departure in September 2001. In that context it found his testimony about reporting only three times and then leaving home to have been fabricated in an attempt to counter the Tribunal’s observation that he had not been re-arrested in the relevant period and had been able to obtain a passport and leave Indonesia. No error is established in the manner in which the Tribunal dealt with this aspect of the Tribunal claims or made its finding in relation to credibility. In particular it has not been established that the adverse credibility findings was based on a misunderstanding of the applicant’s evidence or an unresolved ambiguity. Nor has it been established that the Tribunal failed to take into account a relevant consideration being the true meaning of the applicant’s answers to the questions. It sought clarification. No lack of procedural fairness is established. Finally it has not been established that the adverse credibility finding was unreasonable having regard to all of the matters relied on by the Tribunal and all of the material before it.
The applicants’ submissions dealt together with grounds 2, 3, 4, 5 and 7 of the amended application, claiming that the Tribunal made a fundamental jurisdictional error. The applicants did not seek to proceed on ground 6 in the amended notice of appeal. It was contended that the Tribunal erred in law first in failing to find that in the circumstances it is and/or would be persecutory for the authorities in Indonesia to arrest the applicant for suspicion of involvement in GAM activities or the belief of the authorities that he could provide information about others; secondly by finding that the material support for GAM on the part of the applicant was not an expression of political opinion within the meaning of the Convention which might attract the attention of the authorities for a Convention reason; thirdly by failing to find that the possible heightened interest of the authorities in the applicant by reason of his departure overseas, and the possibility of further detention and arrest on return, would not be for a Convention reason; fourthly by finding that the mistreatment of the applicant and his wife: (a) was for a Convention reason, and (b) if it were to occur again on return would not be for a Convention reason; and finally that the Tribunal erred in incorrectly categorising the applicant’s claim to fear persecution as a wanted person or a person “sought” by the authorities for involvement with Aceh Merdaka.
In essence the applicant took issue with the Tribunal categorisation of the harm suffered by the husband and wife as not arising for reason of political opinion and with its reasoning in relation to whether a Convention reason was apparent. It was submitted that the Tribunal had essentially accepted that the applicant husband was detained in consequence of his financial support for and contact with the Free Aceh Movement. It was submitted that it was never the case of the applicants that they were actively involved with the movement. It was said that the Tribunal had acknowledged the applicant husband’s claims that he was at risk of persecution by reason of his financial support to the movement but that it erred in finding that any interest of the authorities in the applicant husband was not by reason of his political opinion but rather by reason of his material support for GAM and the information he might provide about GAM members. It was submitted that the provision of material support to an association is a tangible expression of political opinion, just as is an active association with members of an association. Hence it was argued that an arrest for providing financial support to a political entity such as GAM was an arrest by reason of political opinion and persecutory and that the harm the husband and his wife and family suffered was a serious harm arising from political opinion. It was said to follow that there was a real risk that serious harm would occur if the husband returned to Indonesia.
It was also claimed that the Tribunal erred in relying on Udeni Welivita v MIEA [1996] 989 FCA 1, a case in which the applicant claimed that if he returned to Sri Lanka he would be charged with a criminal offence, as in that case the criminality of the conduct of the applicant and his spouse under Sri Lanka law was admitted. It was submitted that in this case the demonstrated risk was of arbitrary arrest, detention, torture and possible disappearance (as had occurred to the applicant husband’s friends) by virtue of the expression of political opinion and that this had not been recognised by the Tribunal as arising for a Convention reason. It was submitted that the applicant had been detained for a Convention reason rather than a non-Convention reason, the Convention reason being his active support of the Free Aceh movement and that the possible heightened interest of the authorities and the prospect of further detention and arrest would be for a Convention reason.
It was further contended that, even if it could be argued that the applicant husband was detained for a non-Convention reason, the mistreatment which he received and was likely to receive again if detained was and would be for a Convention reason, as had been recognised by the Tribunal in its acknowledgment that mistreatment encountered after having been detained for a non-Convention reason may nonetheless arise for a Convention reason. It was contended that the evidence was that when the applicant was interrogated in detention the security forces had asked questions in relation to his involvement in the Free Aceh movement and that he was pressured to recant from it. Thus a clear nexus between the mistreatment and the Convention was said to have been established independent of the cause for the detention.
The first aspect of this argument is that the Tribunal erred in not finding that the applicant was persecuted by reason of his political opinion or that he faced a real chance of persecution for a Convention reason on his return. It was submitted that if someone gives support to a political organisation then the reason for that support is and must be a direct expression of political opinion and that an arrest in consequence of such financial support is an arrest by reason of political opinion. However it is for the Tribunal to determine whether someone is to be regarded as having a political opinion or an imputed political opinion. It is not simply the case that the Tribunal has to accept what is asserted. Nor is it the case that the only reason for a person giving support to a political organisation must be as a tangible expression of their political opinion. The fact that such financial support would or may attract attention in the applicant’s home country is not determinative. The Convention nexus is still a necessary element of establishing that a particular person is a refugee. In this case the husband was not Acehnese. It was for the Tribunal to assess whether or not the husband was being imputed with a political opinion as opposed to someone who was, for whatever reason, choosing to give financial support to GAM and had social and business contacts with GAM members. The Tribunal is not bound to come to the particular view of the facts argued for by the applicant. Further, the finding that the fact that a person may face investigation, questioning or arrest on suspicion of involvement by providing material support to and information about an organisation engaged in illegal and violent activities (i.e. involvement in the armed Acehnese insurrection) did not of itself necessarily amount to persecution for a Convention reason where any arrest or possible mistreatment was for a criminal offence was consistent with the authority in Welivita. As McHugh J noted in Applicant A and Anor v Minister for Immigration & Ethnic Affairs and Anor(1997) 190 CLR 225 at 259:
In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution.
In this case there was evidence before the Tribunal, which it accepted, that the applicant had had some social or business contact with and had made some donations to persons who were involved with the GAM. This evidence reinforced the availability of an explanation other than political opinion. It was consistent with the Tribunal’s acceptance that in consequence of this conduct the applicant was picked up, questioned and then warned against ‘continuing such contacts’.
The second aspect of these grounds is that the alleged mistreatment of the applicant was, and if it reoccurred would be, for a Convention reason. The applicant had claimed that he was tortured while detained and his wife claimed that she had been hit by the Indonesian military during one of their visits to her home after September 2001. In the hearing the applicant clarified that when being questioned by the military he was struck once and then struck a number of times when questioned by the police who used a pillow or bolster to hit him on the chest so that there was no mark. The wife clarified that when people came to her home in military uniform in October 2001 they had spoken harshly, grabbed her by the hair and threatened that if she did not tell the truth she or the children could be taken and that she received a second similar visit in February 2002. Contrary to the applicants’ submission, reading the Tribunal decision fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) it is not apparent that the Tribunal accepted all of the applicant’s claims in relation to mistreatment. On the contrary. The Tribunal commenced by indicating that its conclusion that the applicant deliberately fabricated part of his testimony led it to view his testimony more generally with some scepticism, albeit that it accepted that in consequence of his contacts and donations the applicant “was picked up, questioned and warned against continuing such contacts”. The Tribunal also accepted that the applicant was released after three days and not re-arrested and that the authorities’ interest in the applicant may have been heightened by his departure overseas, his family’s attempt to cover that up and his abandonment of regular reporting and that the authorities may have conducted obvious inquiries with the family. Having made these findings the Tribunal then noted that a question arose in relation to the degree of force ‘said to have been employed by the authorities against the applicant when in custody in June 2001 and the roughness of the military when questioning the applicant’s wife’. In that context it stated ‘Although it does not appear in either case to have been particularly extreme, it cannot be defended’. It is apparent from the whole of the Tribunal reasons for decision, that the Tribunal accepted that some force was used (in contrast to the initial claim by the applicant that he was ‘tortured’) noting that ‘it did not appear in either case to have been particularly extreme’. The Tribunal relied on independent evidence that such mistreatment was frequently encountered in dealings with the Indonesian security authorities including in normal criminal inquiries and found that it was not necessarily indicative of persecution for Convention reason. It was not satisfied that any mistreatment of the husband or his wife arose or would arise for a Convention reason. It is relevant that the Tribunal had already found that it was not satisfied that arrest or possible mistreatment by the authorities of a person who was suspected of involvement with an organisation engaged in illegal and violent activities or who may be able to provide information about others more directly involved in such organisation would be significantly or essentially for a Convention reason. It also had regard to what occurred after the June 2001 detention, to the fact that the applicant was not questioned or re-arrested, was living at home and left the country legally. In this context the conclusion that it was not satisfied that any mistreatment of the applicant or his wife had arisen or would arise for any Convention reason addressed both what had occurred in the past and what may occur in the future. In such circumstances it was open to the Tribunal, on the basis of its findings about the past and its consideration of the independent information, to find that the necessary Convention nexus would be absent.
Finally the Tribunal did not ‘incorrectly categorise’ the applicants’ claim. It understood and considered the claims but did not accept that the applicant had been persecuted or that the authorities’ interest in him or his wife was or would be for reason of actual or imputed political opinion or other Convention reason. His protection visa application was made on the basis of his ‘involvement in Free Aceh Movement (GAM)’. The Tribunal understood and considered the nature of his claimed involvement that is that he donated money and had social and business involvement, with persons directly involved with GAM. No jurisdictional error is established on any of the grounds relied upon.
Furthermore even if the Tribunal had erred in relation to its treatment of the claimed past mistreatment, there was a separate finding by the Tribunal that there was no well-founded fear of persecution in the future. In the context of its findings that the applicant had not suffered any further mistreatment after his release from detention and had been able to leave the country freely, it was open to the Tribunal to find, as it did, that it was not satisfied that any future arrest or possible mistreatment of the applicant or his wife by the authorities would be significantly or essentially for a Convention reason. The Tribunal’s decision is justified by the alternative streams reasoning which is not affected by jurisdictional error. (See MIMA v Thiyagarajah (2001) 99 CLR 343 at [17] per Gleeson CJ and also see VEAJ of 2002 v MIMIA [2003] FCA 678 at [55]). Accordingly the application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 December 2004.